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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017-2018
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Freedom of Information Legislation
Amendment (Improving Access and
Transparency) Bill 2018
No. , 2018
(Senator Patrick)
A Bill for an Act to amend the law relating to
freedom of information, and for other purposes
No. , 2018
Freedom of Information Legislation Amendment (Improving Access
and Transparency) Bill 2018
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments relating to access to information
3
Part 1--Main amendments
3
Archives Act 1983
3
Australian Information Commissioner Act 2010
4
Freedom of Information Act 1982
5
Part 2--Transitional rules
10
No. , 2018
Freedom of Information Legislation Amendment (Improving Access
and Transparency) Bill 2018
1
A Bill for an Act to amend the law relating to
1
freedom of information, and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Freedom of Information Legislation Amendment
5
(Improving Access and Transparency) Act 2018.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Freedom of Information Legislation Amendment (Improving Access
and Transparency) Bill 2018
No. , 2018
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments relating to access to information Schedule 1
Main amendments Part 1
No. , 2018
Freedom of Information Legislation Amendment (Improving Access
and Transparency) Bill 2018
3
Schedule 1--Amendments relating to access
1
to information
2
Part 1--Main amendments
3
Archives Act 1983
4
1 At the end of Division 4 of Part V
5
Add:
6
55B Reporting on external legal expenses
7
(1) The annual report prepared by the Director-General under
8
section 46 of the Public Governance, Performance and
9
Accountability Act 2013 for a period must:
10
(a) list each application to the Archives for access to a record in
11
which external legal expenses have been incurred by the
12
Archives; and
13
(b) provide the particulars of the external legal expenses incurred
14
by the Archives in relation to each of those applications.
15
(2) The particulars published under subsection (1) must include the
16
total external legal expenses incurred by the Archives in relation to
17
each application including, but not limited to, any external legal
18
expenses incurred:
19
(a) in making an initial decision in relation to an application for
20
access to a record; or
21
(b) as part of an internal reconsideration of a decision under
22
section 42; or
23
(c) as part of a review by the Tribunal of a decision of the
24
Archives; or
25
(d) as part an appeal to the Federal Court of Australia from a
26
decision of the Tribunal.
27
(3) In this section:
28
external legal expenses includes:
29
Schedule 1 Amendments relating to access to information
Part 1 Main amendments
4
Freedom of Information Legislation Amendment (Improving Access
and Transparency) Bill 2018
No. , 2018
(a) any fees or other expenses charged to the Archives for the
1
provision of legal advice by external legal advisers (including
2
any fees charged by the Australian Government Solicitor (the
3
AGS)); and
4
(b) any fees or other expenses charged to the Archives by
5
external legal advisers associated with specific litigation in
6
relation to an application (including any fees charged by the
7
AGS).
8
Note:
Section 55P of the Judiciary Act 1903 provides that the AGS may
9
charge for services.
10
Australian Information Commissioner Act 2010
11
2 At the end of section 10
12
Add:
13
(3) However, the Information Commissioner must not review
14
decisions under Part VII of the Freedom of Information Act 1982
15
unless he or she holds the qualifications mentioned in
16
subsection 14(3).
17
3 Subsection 12(2)
18
Repeal the subsection, substitute:
19
(2) The Privacy Commissioner may also perform the freedom of
20
information functions (except he or she must not review decisions
21
under Part VII of the Freedom of Information Act 1982 unless he
22
or she holds the qualifications mentioned in subsection 14(3)).
23
4 At the end of section 14
24
Add:
25
Separate commissioners to be appointed
26
(5) The same person must not simultaneously hold more than one
27
appointment (including an acting appointment) as an information
28
officer.
29
Note:
For acting appointments, see section 21.
30
Amendments relating to access to information Schedule 1
Main amendments Part 1
No. , 2018
Freedom of Information Legislation Amendment (Improving Access
and Transparency) Bill 2018
5
Information officer positions not to be vacant for more than 3
1
months
2
(6) The office of an information officer must not be left vacant for
3
more than 3 months.
4
5 Subsection 21(1) (note)
5
Omit "Note", substitute "Note 1".
6
6 At the end of subsection 21(1)
7
Add:
8
Note 2:
Subsection 14(5) provides that the same person must not
9
simultaneously hold more than one appointment (including an acting
10
appointment) as an information officer.
11
Note 3:
Subsection 14(6) provides that the office of an information officer
12
must not be left vacant for more than 3 months.
13
Freedom of Information Act 1982
14
7 Subsection 4(1)
15
Insert:
16
transfer application has the meaning given by subsection 55JB(2).
17
8 Subsection 11C(6)
18
Repeal the subsection, substitute:
19
Time for publication
20
(6) The agency or Minister must comply with this section in the period
21
commencing on the tenth working day after the day the person is
22
given access to the document and concluding on the 14th working
23
day after the day the person is given access to the document.
24
9 Subsection 29(1)(d)
25
Omit "subsection (5)", substitute "subsections (5) and (5A)".
26
10 After subsection 29(5)
27
Insert:
28
Schedule 1 Amendments relating to access to information
Part 1 Main amendments
6
Freedom of Information Legislation Amendment (Improving Access
and Transparency) Bill 2018
No. , 2018
(5A) An applicant who is a Senator or a Member of the House of
1
Representatives is entitled to access to the documents without
2
charge unless the work generated by the application involves
3
charges totalling more than $1,000.
4
11 After section 55E
5
Insert:
6
55EA Procedure in IC review--consistent application of exemptions
7
by decision-maker
8
Where an agency or Minister who made the relevant IC reviewable
9
decision:
10
(a) provides assistance to the Information Commissioner under
11
section 55DA; or
12
(b) is required to provide an adequate statement of reasons under
13
section 55E; or
14
(c) provides any other information, submission or document to
15
the Information Commissioner as part of an IC review;
16
the agency or Minister must not, in providing the assistance,
17
adequate statement of reasons or other information, rely on any
18
exemptions in Divisions 2 and 3 of Part IV that were not relied
19
upon in making the IC reviewable decision.
20
12 At the end of Division 6 of Part VII
21
Add:
22
55JA Procedure in IC review--notice requirement if lengthy review
23
(1) The Information Commissioner must, as soon as practicable, notify
24
an IC review applicant if:
25
(a) he or she considers that it is likely that more than 120 days
26
will elapse between:
27
(i) the time the relevant IC review application is received
28
by the Information Commissioner; and
29
(ii) the time that a decision will be made by the Information
30
Commissioner under section 55K; or
31
Amendments relating to access to information Schedule 1
Main amendments Part 1
No. , 2018
Freedom of Information Legislation Amendment (Improving Access
and Transparency) Bill 2018
7
(b) 120 days has elapsed since the time the relevant IC review
1
application was received by the Information Commissioner.
2
(2) The notice must state that an application to transfer the IC review
3
application to the Tribunal may be made under section 55JB.
4
55JB Procedure in IC review--transfer to Tribunal
5
(1) If the Information Commissioner has issued a notice under
6
section 55JA, an IC review applicant may apply to transfer their IC
7
review application to the Tribunal.
8
(2) An application under subsection (1) is to be known as a transfer
9
application.
10
(3) A transfer application must be in writing and must be sent to the
11
Information Commissioner.
12
(4) A transfer application must be made within 28 days after the day
13
on which the notice under section 55JA was given to the IC review
14
applicant.
15
(5) A transfer application is not required to be accompanied by any
16
fee.
17
(6) On receipt of a transfer application the Information Commissioner
18
must:
19
(a) transfer the IC review application to the Tribunal; and
20
(b) give the Tribunal any information or documents that relate to
21
the review in the possession, or under the control, of the
22
Information Commissioner; and
23
(c) notify the IC review applicant in writing that the IC review
24
application has been transferred.
25
(7) An IC review application transferred under subsection (6) is taken
26
to be an application to the Tribunal for a review of the relevant
27
decision made in accordance with the requirements of section 29 of
28
Administrative Appeals Tribunal Act 1975.
29
(8) To avoid doubt, an IC review application transferred to the
30
Tribunal under subsection (6) is not required to be accompanied by
31
any fee.
32
Schedule 1 Amendments relating to access to information
Part 1 Main amendments
8
Freedom of Information Legislation Amendment (Improving Access
and Transparency) Bill 2018
No. , 2018
Note:
Paragraph 29(1)(b) of the Administrative Appeals Tribunal Act 1975
1
relates to fees for applications to the Tribunal for a review of a
2
decision.
3
13 Before paragraph 57A(1)(a)
4
Insert:
5
(aa) an IC reviewable decision;
6
14 After subsection 57A(1)
7
Insert:
8
(1A) To avoid doubt, if an IC review application is transferred to the
9
Tribunal under section 55JB the Tribunal may review the IC
10
reviewable decision to which the IC review application relates.
11
15 Paragraph 66(1)(a)
12
Repeal the paragraph, substitute:
13
(a) a person applies under paragraph 57A(1)(aa) or (a) to the
14
Tribunal for review; and
15
16 After section 93
16
Insert:
17
93AA Reporting on external legal expenses
18
(1) The annual report prepared by the principal officer of an agency
19
must:
20
(a) list each request made under section 15 to:
21
(i) access a document of the agency; or
22
(ii) access an official document of the agency's responsible
23
Minister
24
in which external legal expenses have been incurred by the
25
agency; and
26
(b) provide the particulars of the external legal expenses incurred
27
by the agency in relation to each of those requests.
28
(2) The particulars published under subsection (1) must include the
29
total external legal expenses incurred by the agency in relation to
30
Amendments relating to access to information Schedule 1
Main amendments Part 1
No. , 2018
Freedom of Information Legislation Amendment (Improving Access
and Transparency) Bill 2018
9
each request including, but not limited to, any external legal
1
expenses incurred:
2
(a) in making an initial decision in response to the request; or
3
(b) as part of an internal review; or
4
(c) as part of an IC review; or
5
(d) as part of an appeal to the Federal Court of Australia on a
6
question of law under Division 10 of Part VII; or
7
(e) as part of a review by the Tribunal under Part VIIA; or
8
(f) as part of an appeal to the Federal Court of Australia from a
9
decision of the Tribunal.
10
(3) In this section:
11
external legal expenses includes:
12
(a) any fees or other expenses charged to an agency for the
13
provision of legal advice by external legal advisers (including
14
any fees charged by the Australian Government Solicitor (the
15
AGS)); and
16
(b) any fees or other expenses charged to an agency by external
17
legal advisers associated with specific litigation in relation to
18
a request (including any fees charged by the AGS).
19
Note:
Section 55P of the Judiciary Act 1903 provides that the AGS may
20
charge for services.
21
Schedule 1 Amendments relating to access to information
Part 2 Transitional rules
10
Freedom of Information Legislation Amendment (Improving Access
and Transparency) Bill 2018
No. , 2018
Part 2--Transitional rules
1
17 Transitional rules
2
(1)
The Attorney-General may, by legislative instrument (and subject to
3
subitem (2)), make rules prescribing matters of a transitional nature
4
(including prescribing any saving or application provisions) relating to:
5
(a) the amendments or repeals made by this Act; or
6
(b) the enactment of this Act.
7
(2)
To avoid doubt, the rules may not do the following:
8
(a) create an offence or civil penalty;
9
(b) provide powers of:
10
(i) arrest or detention; or
11
(ii) entry, search or seizure;
12
(c) impose a tax;
13
(d) set an amount to be appropriated from the Consolidated
14
Revenue Fund under an appropriation in this Act;
15
(e) directly amend the text of this Act.
16